HIGH COURT OF JAMU AND KASHMIR

AT

JAMU

Criminal Acquittal Apeal No. S

- 2/2015

MP Nos. 61/2015, 59/2015, 01/2016

Date of decision:23

. 0 2 .201

7

State of J&K

vs.

Gulzar Ahmed Bhat and others

Coram

:

ustice Janak Raj Kotwal, Judge

Apearing counsel

:

For appelant

(s):

Mr.

M. A. Rathore, AAG

For

respon

dents

:

Mr.

P. N. Raina, Sr. Adv

ocate

with

Mr. J. A. Hamal, Advocate

and

Mr. Y. E. Tak, Advocate

(i)

Whether to be reported in

Pres, Journal/Media

:

Yes/No

(i)

Whether to be reported in

Journal/Digest

:

Yes

Per Kotwal

- J

1.

State is in appeal against

the

judgment of acquittal

dated

12.02.2015

rendered

by

the court of

learned Sesions

Judge, Budgam in Sesion Case No. 142/S, whereby

respondents

- 1, 3, 5 and 6

have been acquitted

after their

trial for ofence

s under section

s 376, 109 RPC arising in FIR

No. 40/20

13 of Police Station, Khansahib

. When this

appeal

came up before

a Division Bench of this Court

at

Srinagar

on 03.03.2015,

the

learned

Bench

stayed the impugned

judgment to the extent of

respondent

No. 1

, Gulzar Ahmad

Bhat (hereinafter

, for short

, R - 1)

and isued direction for

taking him in judicial custody.

2

2.

We have heard learned counsel for the parties and perused

the record.

3.

Facts of the prosecution case as set out before the trial

court are that

R - 1 was runing a religious institut

ion

,

namely, Noorni Fatima Zuhra (Radia

- allah talah Anhuma)

at Shamsabad

, Chadora.

PWs 1 to

5 (na

mes not to be

disclosed herein) had secured ad

mision in t

h is institution

.

On 1

8 .05.2013

PWs

1 to 4 lodged a written information

(for short

the

FIR) to

the Dy

. S. P. Budgam

alleging that

R - 1

has repeated

ly raped

them

. They

alleged

in the FIR that

R - 1

had ben calling them individually in his rom

, he

used to

play

his tape recorder at such high volume that their voice

and screams

were

not heard

outside th

e rom and to make

them unconscious by administrat

ing magic

or

reciting

mantras

. A ll this continued up to 06.12.2012

they alleged

.

On

this information

, ofence under section 376 RPC came

to be registered at Police Station, Khansahib on 19.05.213

as FIR No. 40/2013 and

investi

gation by the police

comenced.

4.

T he

Investigating

Oficer

(I.

O.)

prepared sketch map of the

place

of

ocurrence, he seized articl

es like

mattre

ss es,

tape

recorder etc

. from the bedrom

of

R - 1 and

sent

some of

the seized

items

for chemical analysis to

the

Forensic

Science Laboratory, Srinagar.

PWs 1 to 4

were got

medically examined

. R - 1 was

also got

medically examined

for his potency

check up

. Statements

of PWs 1 to

5 , were

recorded in terms of s

ection 164

- A of the Code of Criminal

3

Procedure

( Cr

. P C ) . On investigation it was found that

R - 1

comitted

rape

on PWs 1 to 4, whereas

respondents

2 to

13 facilitated and asisted in commision

of the ofence

by

R - 1 . Commision of ofence under section 376 RPC was

thus, established against

R - 1 and ofence under section

376/109

RPC

was

established

against

the

other

respondents. Respondents 1 to 6 were arrested wh

ereas

others could not be arrested

as

they

had

absconded.

5.

On completion of investigation the SHO, Police Stat

ion,

Khansahib preferred charge

- sheet for comision of

ofence under section 376 against

R - 1 and section 376/109

RPC against

the

others in the

c omittal court.

Learned

c ommittal c

ourt

ini

t iated

proceedings under section 512

Cr

. PC against

respondents

7 to 13 and

comitted the

case

to

the court of learned Sesi

ons Judge, Budgam for trial

.

The

trial court

vide its order dated

1 6.09.2013 framed

charge under section

376 RPC against

R - 1